November 1, 2010

Maryjane's Machinations

Hatched by Dafydd

Mrmee mrmee mrmee

I was all set to vote Yes on California Proposition 19, legalizing marijuana; I even posted about it here, writing:

Blah blah yak blah

So of course, I am voting yes on Prop 19; as limited and flawed as it is, it's a step rightwards.

Yatta blech blahdy blah

Well it would have been a step rightways, except the authors snuck in a dirty bit of business that only a lawyer would be able to decode. Thank goodness I have a lawyer friend... and here he is:

Under this law, courts may well rule that can employer has no right to take action to prevent marijuana consumption -- even on the job -- unless it “actually impairs” performance. This is a provision that goes beyond simply allowing people to smoke pot. It actually creates a new protected class (marijuana smokers) who may be entitled to sue if they are disciplined or fired for smoking marijuana... as long as the employer cannot prove that the smoking “actually impairs” job performance.


This is the actual text to which Patterico refers:

No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act or authorized pursuant to Section 11301. Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected. -- Voter Information Guide, p. 94, section 11304 (c).

The kicker, of course, is in that phrase, "actually impairs job performance;" that would be the subject of endless litigation.

And why shouldn't an employer be allowed to prohibit dope-smoking on or off the job, on pain of the employee being discharged, even if the employee is not impaired at all?

  • What about liability?
  • Second-hand dope high?
  • What about the fear that a stoned employee might make some horrible mistake that cannot be corrected by firing him after the fact, but could be prevented by firing him before the fact?
  • What if the employer has a purely irrational but religious objection to the use of psychadelic substances? What if he's a Scientologist?

Since I believe employers ought to be able to hire, fire, promote, or demote even on the basis of race, sex, sexual preference, religion, creed, primary language, looks, or the color of one's hat, certainly the same license should hold for hiring or firing on the basis of drug use!

Simply put, the calculus has completely changed. Before, I had to choose only between an individual liberty (to ingest substances for pleasure, medication, or research) and the seemingly prejudiced attitudes of law-enforcement officials, who only want people to get high on the same drug they themselves use: ethyl alcohol.

But now I must choose between two competing individual liberties: the right of an individual to ingest, and the right of an employer to control use of his property (that is, his business).

I find myself in the predicament of Sen. Barry Goldwater, forced by principled consistency to vote against the 1964 Civil Rights Act -- which he had supported all along, until it was amended at the last minute to prohibit purely private prejudice, not merely state-sponsored prejudice, as in its original form. Goldwater simply could not throw overboard the First Amendment right of peaceable assembly, not even for the laudable goal of diminishing racism.

Similarly in this case, I must come down on the side of the employer; it is the more important, more universal right of property. Therefore, I must change my vote. Fortunately, I decided not to vote early but to wait until tomorrow and vote at a polling place. I have remarked that ballot question to No, and that is how I plan to vote on Proposition 19.


(The above refers to the authors of this citizens' initiative, who were either incompetent or mendacious in crafting that particular clause of the initiative, making it an inadvertent or intentional "poison pill.")

Hatched by Dafydd on this day, November 1, 2010, at the time of 11:29 PM

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The following hissed in response by: char

the authors of this citizens' initiative, who were either incompetent or mendacious in crafting that particular clause of the initiative

Nothing nefarious. Cheech and Chong were the expert consultants.

The above hissed in response by: char [TypeKey Profile Page] at November 2, 2010 7:53 AM

The following hissed in response by: Karl

I suspect, though, if Prop 19 passes today it will be overturned in the courts, just like Prop 8 and Prop 187.

The above hissed in response by: Karl [TypeKey Profile Page] at November 2, 2010 9:04 AM

The following hissed in response by: Dafydd ab Hugh


Beware the sin of despair. Proposition 8 has not been "overturned in the courts;" it was actually upheld by the California Supreme Court. In the federal case, one district court in San Francisco, presided over by a gay activist (and gay) judge, ruled against it; it's still pending in the Ninth Circus, and of course the U.S. Supreme Court will ultimately rule on it.

It's not difficult at all to get a district court to make a ludicrous ruling, if the Left is willing to judge-shop (which they're always willing and eager to do). Recall Judge Thelton Henderson's ruling that Proposition 209 -- "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting" -- was unconstitutional on the grounds that it was racially discriminatory.

But Henderson was overturned by the Ninth, and Prop 209 is still the law of California after fourteen years.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at November 2, 2010 11:19 AM

The following hissed in response by: char


Are you saying Prop 209 didn't include sexual turn-ons, mental "challenges", childhood advantages, alma maters, general attractiveness, weight, and party affiliation?

Irresponsible prog judge. You CA proles just got lucky.

The above hissed in response by: char [TypeKey Profile Page] at November 2, 2010 12:42 PM

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